Are Retainer Agreements Privileged
Unnecessary disclosures may constitute a waiver if a significant portion of the privileged communication is disclosed (some content is disclosed). Solicitor-client privilege is withs removed if the client sues his lawyer; the lawyer has the right to defend himself by the disclosure of other privileged information by the lawyer-client. Dietz v. Meisenheimer & Herron, 177 Cal.App.4th 771, 786, 99 Cal.Rptr.3d 464, 475 (2009). Not everything created by a lawyer is protected by the privilege of the work product. To be privileged, the work product must be generated by the lawyer “for the purpose of litigation”. [Coastal Oil New York, Inc. v. Peck, 184 AD2d 241, 584 NYS2d 564 (1st Dept 1992); Royal Indemnity Co. v. Saloman Smith Barney, Inc., NYLJ, July 8, 2004, p.
18, column 1 (Sup Ct NY Co) (“A significant and significant risk of litigation is necessary before the expectation of an opponent of the discovery is considered a reasonable and justified reason for the drafting of a document”).] Since only communication itself is privileged, a client cannot protect an otherwise findable document by returning it to the lawyer`s custody. == individual supporting documents == Doe, 959 F2d 1158 (2d Cir 1992) (telephone records that the client provides to the lawyer as part of legal advice are not preferred); Matter of Grand Jury Subpoena of June 30, 2003, 1 Misc3d 510, 770 NYS2d 568 (Sup Ct Suffolk Co 2003) (lawyers who obtained from their client custody of a laptop that could have been the instrument of a crime, may be compelled to testify before the Grand Jury about the current location of the laptop).] However, this so-called “common interest” privilege applies only to communications that are actually subject to legal secrecy. Thus, communications that “were exclusively commercial and did not concern legal advice in pending or reasonably expected disputes” are not privileged simply because they were present with a “common interest”. [Case of Stenovich v. Wachtell, NYLJ, 9 January 2003, p. 21, column 2 (Sup Ct NY Co).] To be subject to privilege, communication, which takes place in the presence of persons with a “common interest”, must concern the “common interest” or “common defence”. Even if the interview concerns the representation of legal counsel, when the discussion concerns the defendants` claims against one another and not their common interest vis-à-vis the applicant, the presence of the co-defendants waives solicitor-client privilege. [Brooklyn Navy Yard Cogeneration Partners, L.P. v. PMNC, NYLJ, December 31, 2002, p. 22, Col 2 (Sup Ct Kings Co); Grande Prairie Energy LLC vs. Alstom Power, Inc., NYLJ, October 25, 2004, p.
19, column 1 (Sup Ct NY Co) (the “common interest” privilege “does not protect communication in complex business transactions simply because such transactions often give rise to litigation”).] Some tactics for questioning filings are aimed at tricking a witness into privileged communications. . . .